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Alaska Loses Legal Effort to Access 28 Million Acres of Land

March 15, 2022, 2:52 PM

Alaska’s challenge to the Biden administration’s decision not to open access to 28 million acres of land can’t proceed because the decision-making process as to whether to open the lands is ongoing, a federal court in the state ruled.

The state filed its lawsuit after the Bureau of Land Management postponed Trump-era decisions that revoked land withdrawals covering nearly 28 million acres of federal public lands.

BLM listed multiple issues with the public land orders in its April 2021 decision, including a failure to get consent from the Department of Defense for lands withdrawn for defense purposes. The PLOs also failed to adequately study effects on hunting and fishing and likely failed to consider effects on protected species, the agency said.

The land at issue won’t be available for mineral or resource exploration during the agency’s two-year review period, the state told the U.S. District Court for the District of Alaska. The land also won’t be available for state selection or transfer to Alaska Native Vietnam-Era veterans, according to the lawsuit.

The state is essentially challenging the revocation of the land withdrawals, despite its arguments to the contrary, the court said. However, BLM’s April decision is an “intermediate step along the way to a final revocation decision,” according to the ruling Monday.

The agency’s action was simply a decision to continue the process, the court said, and no legal consequences came from it because BLM didn’t say whether the land withdrawals were revoked.

Alaska argued the agency was required to publish then-Secretary of the Interior David Bernhardt’s order in the Federal Register. But BLM isn’t required to publish a PLO once the secretary signs it, the court said. Also, the two-year delay isn’t unfair because BLM has no duty to publish the PLOs, according to Judge H. Russel Holland.

“Taking two years to ensure that the revocations of the withdrawals at issue are proper, when the agency has no statutory or regulatory duty to act within a specific period of time, is not unreasonable,” Holland wrote.

The Alaska Department of Law represented the state. The Justice Department represented the federal government.

The case is Alaska v. Haaland, D. Alaska, No. 3:21-cv-0158, 3/14/22.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com